Introduction

Civilly disobedient citizens in democratic societies are rather beautifully characterized by Jürgen Habermas as 'ambivalent dissidents' (Habermas, 2004, 9). This status reflects the complex quality of a mode of protest that — according to Habermas — might appear to simultaneously challenge and uphold constitutional democratic principles. On the one hand, those who set themselves against democratic decisions through public acts of law-breaking 'could in the final analysis transpire to be the enemies of the constitution'. On the other hand, these citizens may 'contrary to their image...prove themselves to be the true patriotic champions of a constitution that is dynamically understood as an ongoing project — the project to exhaust and implement basic rights in changing historical contexts' (Habermas, 2004, 9).¹

Despite this allusion to the 'ambivalence' of civil disobedience, Habermas has consistently emphasized the second of these two interpretations. When he defends civilly disobedient citizens as the 'guardians of legitimacy' in a deliberative democracy, it is their image as 'the true patriotic champions of a constitution' that comes to the fore (Habermas, 1985, 103). I share Habermas's intuition that civil disobedience can be defended as a powerful resource for upholding democratic principles. The contention of this article, however, is that Habermas does not support this intuition as well as he might. In particular, I argue that he does not present us with an adequate account of the democratic justification of this mode of protest. This failing may be taken by some critics as a basis for rejecting a Habermasian approach to civil disobedience, in favour of an alternative account.² I propose a different response, which looks to resources within Habermas's theoretical framework in order to overcome the limitations in his account as it stands. To this end, I appeal to Habermas's notion of 'social power' in order to provide a robust and original defence of civil disobedience within a deliberative democracy.

The article begins by outlining the broader theoretical framework of Habermas's writings on civil disobedience, introducing some of the key elements of his deliberative democratic theory. With this groundwork completed, the second section focusses on his attempt to defend civilly disobedient citizens against two common criticisms: that they undermine the stabilizing function of law in democratic societies and that they violate the principle of majority rule. The third section criticizes Habermas's defence of civil disobedience. While he makes clear that rights-violating laws and policies may be appropriate targets of civil disobedience, he also implies that inadequacies in deliberative democratic procedures might justify its use. What his argument lacks, I suggest, is a clear and compelling account of these inadequacies. The final section turns to the idea of social power to provide such an account. I argue that civil disobedience is a justifiable response to inequalities in social power that distort deliberative democratic procedures by facilitating violations of communicative freedom. Such a move bolsters the democratic case for civil disobedience, as well as furnishing a theoretical framework that resonates with the agendas of several recent civilly disobedient movements.

Communicative Freedom and Deliberative Democracy

Habermas's views on civil disobedience are directly informed by his deliberative conception of democracy. In an ambitious synthesis of moral, social, political, and legal theory, Habermas aims to elaborate the 'radical democratic insight' that legal subjects cannot enjoy their 'equal individual liberties' without also engaging in a 'common exercise of their political autonomy' (Habermas, 1996, xlii). While summarizing such a complex theory is a difficult task, in what follows I discuss what I take to be its core components: the mutual dependence of public and private autonomy, the centrality of public deliberation for democratic legitimacy, and the necessity of combating the circulation of illegitimate social power in the polity.

Habermas's democratic theory is based on a particular understanding of the role of law in modern societies. Subjects should be able to comply with legal orders on the basis of strategic considerations about the likely negative consequences of disobedience and morally motivated respect inspired by the legitimacy of law. As he puts it: 'legal norms must be fashioned so that they can be viewed simultaneously in two ways, as coercive and as laws of freedom' (Habermas, 1998, 255). Habermas cautions against the temptation to conceptualize freedom exclusively as the entitlement of citizens to engage in public law-making processes, which he refers to as 'public autonomy', or the entitlement of citizens to pursue their own interests free from interference, which he refers to as 'private autonomy'. Instead, modern legal systems must recognize both these aspects of individual freedom as mutually dependent (Habermas, 1996, 118).

Habermas argues for this mutual dependence via a complex reconstruction of the process through which public and private freedom assumes an institutional–legal form. In the course of this reconstruction, the idea of 'communicative freedom' plays an important role.³ Habermas describes communicative freedom as 'the possibility — mutually presupposed by participants engaged in the effort to reach an understanding — of responding to the utterances of one's counterpart and to concomitantly raised validity claims' (Habermas, 1996, 119). The exercise of communicative freedom is a necessary requirement of Habermas's 'discourse principle', which states that a norm is valid only if those possibly affected by its observance could consent to it after participating in rational discourse (Habermas, 1996, 107). Individuals exercise their communicative freedom when they engage in the give and take of reasons with others about contested validity claims, with the aim of reaching agreement on the basis of shared reasons and on the assumption that equal consideration be given to the views of all participants. However, in order for the exercise of communicative freedom to be genuinely independent and non-coerced, it must be possible for participants to withdraw from demanding processes of reason giving. In associating individual freedom with the ability to enter into and withdraw from communicative processes, Habermas claims to explain the 'intuition' that public and private autonomy are mutually dependent.

Habermas associates our exercise of communicative freedom with the public autonomy of individuals, meaning 'participation in all deliberative and decisional processes relevant to legislation...in a way that provides each person with equal chances to exercise the communicative freedom required to take a position on criticisable validity claims' (Habermas, 1996, 127). He associates our retreat from the demands of communicative freedom with the private autonomy of individuals: 'private autonomy extends as far as the legal subject does not have to give others an account or give publicly acceptable reasons for her action plans' (Habermas, 1996, 120). These dimensions of communicative freedom must be institutionalized through a constitutional system of rights that incorporates both the 'liberties of the ancients', political rights guaranteeing free and equal participation in democratic law-making, and the 'liberties of the moderns', private rights guaranteeing a sphere of personal freedom to pursue individual life-plans. These rights, then, allow for our exercise of communicative freedom on the one hand and our retreat from communicative freedom on the other (Habermas, 1998, 261).

According to Habermas, the system of rights forms the basis for a deliberative democratic system of government. A constitution should establish legal protection of individuals, institute a formal separation between state and society, and facilitate processes of popular sovereignty through regular elections and parliamentary law-making (Habermas, 1996, 168–176). The role of public deliberation as a source of democratic law-making is maximized, both within the formal decision-making institutions of the state — legislative assemblies that debate issues prior to passing majority decisions — and between the state and 'civil society', understood as 'a network of voluntary associations and a political culture that are sufficiently detached from class structures' (Habermas, 1996, 175). The constitutional state must provide a legal framework for civil society and at the same time channel the concerns and opinions expressed by social actors into its deliberations.⁴ Habermas recommends healthy flows of undistorted communication throughout the polity, always with the proviso that citizens can retreat from this process of never-ending deliberation to pursue their own private life-plans.

Given his commitment to free and un-coerced deliberation, Habermas is sensitive to challenges posed to deliberative democracy by entrenched sources of social power. Habermas understands social power as 'the possibilities an actor has in social relationships to assert his own will and interests, even against the opposition of others'. Social power is a threat to communicative freedom to the extent that: The disposition over social power provides some parties with a privileged opportunity to influence the political process in such a way that their interests acquire a priority not in accord with equal civil rights. Businesses, organizations, and pressure groups, for example, transform their social power into political power by way of such interventions, whether they do so directly by influencing the administration or indirectly through manipulating public opinion (Habermas, 1996, 175).

It is because of this threat that Habermas defends the separation of state and society. Legislative bodies must be sufficiently independent of entrenched sources of social power to pass laws and policies reflecting the interests and opinions of society as a whole. Despite this separation, Habermas suggests that constitutional states are frequently beset by 'legitimation deficits' caused by the detachment of institutional law-making from free and un-coerced deliberation and the encroachment of social power into the democratic process (Habermas, 1996, 429–430). Energetic action on the part of associations and groups in civil society must play a vital role in absorbing and neutralizing the effects of power inequalities on the 'communicative structures' of deliberative democracy (Habermas, 1996, 369).

Civil Disobedience as the Guardian of Legitimacy

The above sketch of Habermas's deliberative democracy identifies the broader theoretical context for his writings on civil disobedience. Habermas defines civil disobedience as a non-violent, symbolic, and illegal form of protest, undertaken with the intention of appealing to the formal institutions of the state on the one hand and the sense of justice of the wider political community on the other (Habermas, 1985, 99). With this understanding of civil disobedience, Habermas seeks to defend it as an informal but vital 'guardian of legitimacy' in constitutional democratic states.

For Habermas, as for other political theorists, civil disobedience raises moral dilemmas because of its illegality (Dworkin, 1985, 104–116; Rawls, 1999, 341). There are two reasons why this illegal action is problematic, at least in constitutional democratic states. First, it challenges the presumption that laws will be generally complied with throughout the society. Therefore, it risks undermining the status of law as a medium of social coordination that can stabilize expectations precisely because it establishes clear regulations prescribing predictable conduct. Second, in disobeying laws that have been produced via constitutionally regulated democratic procedures, civilly disobedient citizens appear to challenge the principle of majority rule. This principle remains an important and necessary component of deliberative politics despite its apparently non-deliberative status. Habermas suggests that the need for majority rule derives from the imperative of coming to a decision in circumstances of limited time and information. Although majority decisions are fallible and represent what may only be temporary stoppages in ongoing conversations, 'we hold fast to the notion of majoritarian decisions which must be respected by minorities as the via regia of the democratic will formation' (Habermas, 1985, 111). The will of the majority as expressed through legislative decisions should be binding even on minorities who disagree with those decisions (Habermas, 1996, 306).

The role of law as a medium of social coordination and the presumption that majority decisions should be accepted, constitute reasons in favour of legal compliance in constitutional states. Therefore, civilly disobedient citizens at least have some kind of obligation to publicly explain their illegal actions to other members of the democratic community. They are, as it were, subject to the demanding requirements of communicative freedom, in that through the give and take of reasons in the public sphere they must be prepared to justify their resort to civil disobedience.

When Habermas discusses the kinds of reasons that civilly disobedient citizens might invoke to justify their illegal actions, his conception of a constitutionally regulated deliberative democracy plays a prominent role. Of particular importance is the underlying normative foundation of such a regime, especially its commitment to communicative freedom. As we saw, Habermas defends the institutionalization of communicative freedom through a constitutional regulation of power. But although a constitution can provide an institutional framework for freedom, it cannot completely guard against the danger that procedurally sanctioned violations of freedom may be permitted. Or as Habermas puts it, 'neither the adherence to due process nor the authority of scientific jurisprudence offers an automatic safeguard against the moral uprooting of a constitutional order and a science of law the façade of which remains intact' (Habermas, 1985, 103). Habermas suggests that civil disobedience becomes potentially justifiable if and when particular laws and policies violate the normative principles that constitute the 'supra-legal' standard of legitimacy for the entire constitutional system. According to Habermas, 'acts of non-violent, symbolic rule violations [i.e. civil disobedience] are meant as expressions of protest against binding decisions that, their legality notwithstanding, the actors consider illegitimate in the light of valid constitutional principles' (Habermas, 1996, 382–383).

Adopting this strategy of justification enables civilly disobedient citizens to advance counter-arguments to the reasons for legal compliance cited above. The first argument they must overcome is that illegal political protest undermines the stabilizing function of law in society. Against this, civilly disobedient citizens can claim that facilitating social stability is only one requirement of modern law. An equally important requirement is that laws protect the public and private freedom of individuals, both by protecting their basic rights and by facilitating healthy and non-coercive public deliberation. Insofar as law fails to respect freedom, then stability by itself might offer insufficient grounds for legal compliance. In Habermas's words, 'the modern constitutional state can only expect of its citizens obedience to the laws if and in so far as it rests on principles worthy of recognition, in light of which that which is legal can be justified as legitimate — and, if necessary, can be rejected as illegitimate' (Habermas, 1985, 102). At the very least, there must be some kind of balance between stability and legitimacy; while the former is important and might count in favour of legal compliance in most circumstances, the latter is equally weighty and might count in favour of illegal political protest against serious infringements of constitutional principles. According to Habermas, when state officials condemn civil disobedience purely because of its illegality, they succumb to an 'authoritarian legalism' that prematurely subordinates the legitimacy of law to the stabilizing function of law (Habermas, 1985, 106).

The second charge that civilly disobedient citizens must overcome is that illegal political protest violates the principle of majority rule. Against this, civilly disobedient citizens can argue that majority rule itself is not a definitive test of democratic legitimacy but is instead conditional on public deliberation and respect for basic rights. According to Habermas, 'the majority decision must be premised on a competent discussion of the disputed issues, that is, a discussion conducted according to the communicative presuppositions of a corresponding discourse' (Habermas, 1996, 179). Majority decisions should be the outcome of a sufficiently robust and undistorted process of public deliberation, both within legislative bodies and between legislative bodies and civil society (Thomassen, 2007, 207). Moreover, 'majority decisions are generally constrained by basic rights protecting the minority, for in exercising their political autonomy citizens must not violate the system of rights that first constitutes this autonomy' (Habermas, 1996, 180). Like stability, majority rule should not be dismissed as unimportant, but neither should it be invoked as part of an automatic condemnation of civil disobedience, at least if civilly disobedient citizens appeal to the normative principles that underlie the constitutional system as a whole (Cohen and Arato, 1992, 600).

Civil disobedience functions as an informal but vital check on the danger that governments might enact laws and policies that violate the underlying principles of a constitutional republic. Civil disobedience 'is often the last chance to correct errors in the process of the realisation of a legal order or to set innovations in motion' (Habermas, 1985, 104). These actions, 'the form of which is illegal' nevertheless escape the taint of criminality because 'they are carried out with appeal to the legitimating foundations of our democratic constitutional order' (Habermas, 1985, 99).

What Kind of Illegitimate Laws Justify Civil Disobedience?

In his writings on civil disobedience, Habermas demonstrates a keen awareness of the fallibility of legal–political procedures and the overriding necessity that they remain answerable to a critical public. His defence of principled, public, and illegal activism should certainly caution us against premature claims that he has 'turned his back on extra-constitutional agents of...democratic influence' (Dryzek, 2000, 26). However, Habermas's theory is not without its faults. Despite frequently invoking the idea that civil disobedience is justified against illegitimate law and policy, Habermas does not provide an adequate account of the various ways in which laws and policies might be reasonably adjudged illegitimate. In particular, as I shall argue below, he does not unpack the ways in which laws and policies might be charged with being made in an insufficiently democratic fashion. This makes it hard for us to appreciate the full range of circumstances that might justify a resort to civil disobedience.

As we saw above, Habermas justifies civil disobedience as an informal guardian of legitimacy in a constitutional democratic state. The intuitive idea is that constitutional principles might be violated by government law and policy, despite what Habermas calls the 'many mechanisms for self-correction...built into our constitutional order' (Habermas, 1985, 104).⁵ His theoretical framework suggests that two kinds of illegitimate law and policy might be appropriate targets of civil disobedience: law and policy that violates the basic rights of citizens and law and policy that is produced in an insufficiently deliberative manner. As we saw earlier, recognition of basic rights and healthy flows of deliberation throughout the polity facilitate our freedom to enter into and retreat from communicative interaction with others. Insofar as law and policy violates basic rights or in some way undermines healthy flows of public deliberation, it might be accused of being illegitimate. But without saying more about how such charges could be substantiated by civilly disobedient citizens in the public arena, it is difficult to see how Habermas's theory can inform ongoing debates about the justification of civil disobedience in constitutional democratic states.

Taking a closer look at the kinds of illegitimate laws and policies that might justify civil disobedience, it is perhaps fair to say that the first kind of illegitimacy, rights violation, provides a clearer and more established target of justified civil disobedience than the second, insufficient or inadequate deliberation. The idea that civil disobedience might be justified against rights-violating laws and policies, while by no means universally accepted, has been widely defended and elaborated in contemporary political philosophy, particularly by liberal egalitarians.

The paradigmatic statement of this view has been provided by John Rawls, who defends civil disobedience as a response to clear and substantial violations of equal rights and liberties. To be sure Rawls does not establish a clear threshold of injustice, which would trigger the conditions for justified civil disobedience if breached by government law or policy. But he does suggest that common sense interpretations of his principle of equal liberty will generally suffice to ascertain the unjust character of many laws and policies. As he puts it, 'when certain minorities are denied the right to vote or to hold office, or to own property and to move from place to place, or when certain religious groups are repressed and others denied various opportunities, these injustices may be obvious to all' (Rawls, 1999, 327). In a similar fashion, Habermas suggests that what he describes as 'the obvious violation of civil rights' constitutes appropriate grounds for justified civil disobedience (Habermas, 1985, 108). Civilly disobedient citizens must appeal to the sense of justice of the democratic majority in order to try and convince them, through the cogency of their beliefs and the skilfulness of their appeal, that existing law and policy constitutes a serious and unacceptable injustice.

The second type of illegitimacy, insufficient or inadequate deliberation, is harder to pin down. It is difficult to specify the kinds of inadequacies in deliberative democratic processes that might create the conditions for justified civil disobedience, at least when we turn to Habermas's writings on civil disobedience as a guide. It is clear that Habermas wants to allow for the possibility that civil disobedience might be justified in the context of deliberative inadequacies. In his defence of the German peace movement, Habermas explicitly identifies the lack of democracy surrounding the formulation of West Germany's defence policy as a factor legitimating the resort to civil disobedience. He focusses specifically on the decision of the Bundestag to allow stationing of US nuclear missiles on West German territory. He claims that this particular decision, like other judgements of the legislature, should be measured against the following standard: 'to what extent do the decisions, which the processes of majority rule make possible under conditions of limited resources of time and information, diverge from the ideal results of a discursively achieved agreement or a presumptively just compromise?' With this exacting standard in mind, Habermas sanctions the civil disobedience of the peace movement which, in his own words, 'opposes the insufficiently democratically legitimated installation of Pershing II missiles' (Habermas, 1985, 111).

Whatever the merits of the particular civil disobedience campaign that Habermas aims to defend, there are problems with his method of justification. If we were to compare actual democratic decisions against the ideal result of a hypothetical discourse, it is likely that there would be divergences in most instances. As Habermas himself suggests, this is a consequence of the necessary empirical restrictions imposed by limited time and information, not to mention the many special requirements and constraints that may be relevant in geographically distinct democratic contexts (Habermas, 1996, 325–326). In itself, a divergence between actual and ideal results does not appear sufficient to justify civil disobedience against democratic decisions. If it were, then it may be difficult to imagine civil disobedience ever being unjustified on 'democratic' grounds.⁶ Instead, what seems more important is the nature of the empirical constraints that produce the 'non-ideal' decision; in other words, the specific circumstances or factors that have influenced a democratic decision one way or another. It is on these grounds that a justification of civil disobedience should be based, not on the application of an excessively demanding criterion of democratic legitimacy that would condemn any empirical departure from ideal discursive outcomes. What Habermas fails to provide us with here is an account of the morally significant ways in which deliberative procedures might be distorted or influenced, which might establish the context for a reasonable charge of democratic illegitimacy and a justified civil disobedience campaign.

In summary, when he defends civil disobedience as a response to illegitimate law and policy, Habermas does not offer a comprehensive or compelling account of the circumstances that create the conditions for justified illegal political protest. Although he identifies serious rights violations as appropriate targets of civil disobedience, he does not substantiate the kinds of inadequacies in deliberative democratic procedures that might also be appropriate targets. This is unfortunate as it tends to dilute the potential for using Habermas's theory as the basis for a democratic defence of civil disobedience, one which moves beyond — without rejecting — the traditional liberal focus on rights-violating laws.

Civil Disobedience and Distorted Democratic Deliberation

Habermas's intuition that civil disobedience might be justified on grounds other than rights violations, while remaining compatible with deliberative democratic politics, is one that I believe to be correct. In order to elaborate and defend this intuition, however, it is necessary to advance a stronger account of the inadequacies in deliberative procedures that might suffice to justify a civil disobedience campaign. In this section, I suggest that Habermas's concept of social power can be employed to provide such an account. By indicating how the illegitimate circulation of social power throughout the polity might distort deliberative democratic practices, we can show how the conditions for justified civil disobedience campaigns against such distortion might arise. I begin by revisiting the concept of social power discussed briefly at the end of the first section, in order to show how it becomes relevant in appraising the legitimacy of democratic decisions.

We saw earlier that Habermas is sensitive to the danger that entrenched sources of social power might impact upon democratic politics. Recall that Habermas defines social power as 'the possibilities an actor has in social relationships to assert his own will and interests, even against the opposition of others' (Habermas, 1996, 175). While social power does not threaten public deliberation per se, it can do if inequalities in social power undermine the conditions for free and widespread public deliberation. If power inequalities become endemic then the communicative freedom of citizens can be violated (Bohman, 2000, 12–16).

Communicative freedom is violated to the extent that powerful parties can secure their objectives without having to convince the wider democratic community through a meaningful exercise of reason giving. Insofar as powerful citizens can achieve their objectives without having to engage in public deliberation they escape the requirement, entailed by communicative freedom, of having to rigorously defend their opinions and beliefs in the public sphere to relevant parties. They may be in a position to circumnavigate the process of reason giving and achieve their objectives via non-deliberative means, for instance though direct or indirect influence over decision-making procedures. Alternatively, they may engage in the appearance of reason giving in the sure knowledge that their powerful position makes it extremely unlikely that their arguments will be successfully challenged by less powerful participants. Communicative freedom is also violated to the extent that decisions are made without taking at least some account of the opinions of all affected parties. Insofar as less powerful citizens are unable to receive a hearing for their opinions or to initiate deliberation, they cannot make effective use of their communicative freedom. They cannot submit arguments in the public sphere in the hope of receiving a response from others.

Taking a lead from James Bohman, it is possible to identify two of the main ways in which the circulation of social power can cause violations of communicative freedom. First, violations can derive from the distorting effects of inequalities in wealth and resources on deliberative democratic politics (Bohman, 2000, 13). An example is the unequal opportunities that groups and individuals have to influence the direction of public debate on television and the mass media. Some participants to deliberation may be able to draw on their financial wealth to purchase advertising time for their beliefs or to invest in outlets such as newspapers or television channels that will give them direct influence over aspects of the mass media (Bohman, 1996, 140–141). A related example is the unequal opportunities of groups and individuals to influence legislators and political parties. Some participants to deliberation may be able to purchase direct access to decision makers and/or to draw upon a shared social and cultural background in their dealings with decision makers (Fiss, 1996, 16; Young, 2001, 679–680). Another example is the capacity of economic agents to steer the direction of deliberation and policy, not by exercising their communicative freedom but by threatening to administer punishments on democratic communities that pursue policies construed as hostile to their interests. The threat of capital flight, for example, often has a steering effect on democratic deliberation over economic policy in domestic contexts. Not only does the threat of capital flight make the state-sanctioned economic regulation or redistribution a less likely outcome of democratic debate, it might also make participants to deliberation less likely to even publicly discuss it as an option. Political actors may fear that if policies supposedly contrary to corporate interests are even seriously considered in public debate, this may be enough for external and internal investors to instigate capital flight (Pzeworski and Wallerstein, 1989, 22–23).

The second source of violation derives less from inequalities in wealth and resources and more from background attitudes and assumptions, particularly the way the latter can maximize the voice and influence of some participants to deliberation while minimizing the voice and influence of others (Bohman, 2000, 14). Entrenched cultural stereotypes can make it far harder for some groups and individuals to receive deliberative 'uptake' for their views than others. Race and gender theorists, for example, have highlighted how the experiences, culture, and vocabulary of dominant groups operate as a backdrop for social interaction and democratic dialogue, to the point where deliberation between formally free and equal citizens can be tainted by subtle forms of domination and inequality (Fraser, 1997, 78). In practice, the cultural norms of dominant groups operate implicitly as a standard against which 'non-conforming' groups and individuals can be stigmatized as different or inferior (Young, 1990, 58–61). According to some feminist theorists, deliberation among a group of formally equal individuals can often be distorted through implicit forms of inclusion and exclusion, demonstrated in social research revealing the various ways in which women can be silenced or marginalized in male-dominated deliberative settings (Mansbridge, 1993, 363–364). Habermas himself draws upon feminist arguments in his critique of the liberal and welfare state paradigms of law. He highlights how both formal legal equality and state-administered welfare fail to neutralize, and in some cases exacerbate, informal relations of domination within 'a culture dominated and defined by men' (Habermas, 1996, 423). The problems stem from social categorizations and cultural codes that restrict the communicative freedom of women to define and articulate for themselves their needs and interests in public political discourse (Habermas, 1996, 425–426).

Violations of the norms of communicative freedom have serious implications for the background conditions of healthy deliberative politics. Moreover, according to Habermas, when they become widespread and systemic they may undermine the basis of legitimate law-making in a democratic regime. Deliberative democracy should take place against the backdrop of a sufficiently undistorted communicative infrastructure:A legal order is legitimate to the extent that it equally secures the co-original private and political autonomy of its citizens; at the same time however, it owes its legitimacy to the forms of communication in which alone this autonomy can express and prove itself. In the final analysis, the legitimacy of law depends on undistorted forms of public communication and indirectly on the communicational structure of the private sphere as well (Habermas, 1996, 409).

The legitimacy of laws and policies becomes suspect to the extent that law-making procedures are influenced by the circulation of social power and not by 'undistorted forms of public communication'. If social power has been translated into laws and policies, because powerful agents have been able to disproportionately influence or circumnavigate public deliberation or because some affected groups and individuals have been unable to receive deliberative uptake for their views, then those laws and policies might be accused of being illegitimate. This is one of the reasons why Habermas thinks it is so important for the various associations and networks of civil society to assume an 'active and momentous role' in articulating interests and opinions, often in the face of a democratic process compromised by illegitimate social power (Habermas, 1996, 380).

This heightened sensitivity to the impact of power inequalities on democratic legitimacy can be constructively applied to the democratic justification of civil disobedience. As discussed above, Habermas wants to leave a space for justified civil disobedience not merely against rights-violating laws but also as a response to inadequacies in democratic processes. However, in his writings on civil disobedience he does not provide a compelling account of the morally significant ways in which deliberative democratic practices can be distorted. By focussing on the ways in which the circulation of social power distorts democratic deliberation, we begin to get some idea of the contexts that might support a plausible justification for civil disobedience on democratic grounds. As well as being a potentially justifiable response to rights-violating laws and policies, civil disobedience can also be justified as a challenge to inequalities in social power that magnify the opportunities for powerful citizens to influence democratic deliberation and/or that inhibit the opportunities for less powerful citizens to exercise their communicative freedom. In this way the justification of civil disobedience retains its close link with the underlying normative principles of a constitutional deliberative democracy, with the added bonus that we have a clearer idea of the kinds of inadequacies in democratic procedures that create the conditions for justified civil disobedience.⁷

Such an approach resonates with the agendas of several civilly disobedient protest movements in recent years. A protest network that has recently employed tactics of civil disobedience to highlight anti-democratic concentrations of social power is the altermondialistes, or 'alternative globalizers'.⁸ One of their main objectives is to publicize and challenge powerful economic actors who influence the direction of public debate and policy within democratic and democratizing states through non-deliberative means, such as the threat of capital flight. Another aim is to publicize and contest the processes through which politicians and officials discuss and formulate global economic policy, for instance through discussion of global trade rules at the WTO (World Trade Organization). Such institutions are criticized for conducting their deliberations behind closed doors, thus rendering decision-making insufficiently transparent and public. They are also criticized for reflecting the interests of powerful participants, such as northern hemisphere economies and actors, over and above the full range of individuals and regions who will be affected by their decisions (Pogge, 2001, 250–253; Young, 2001, 677–678).

Another protest network that has employed illegal direct action is the gay rights and AIDS awareness group ACT UP.⁹ A feature of these campaigns is the skilful use of humour to gain publicity for a particular cause and to challenge entrenched cultural assumptions. The rationale for engaging in civil disobedience is to create a public space for articulating the needs and interests of a socially marginalized and stigmatized group in society. The protest action is meant as a corrective to the difficulties faced by AIDS suffers in receiving deliberative uptake for their concerns, through providing an empowering and effective way of finding a voice in public political debate. This case for civil disobedience was especially powerful in the early years of ACT UP's campaign, where public acknowledgement of the seriousness of AIDS was unforthcoming and prejudice against AIDS sufferers proliferated (Young, 2000, 178; Eigo, 2002, 178–195).

The anti-nuclear campaign that provoked Habermas's initial reflections on civil disobedience may, at first glance, appear less amenable to this strategy of justification. In fact, this campaign did reflect concerns about the extent to which the democratic process allowed for a meaningful exercise of communicative freedom on the part of those affected by the decision (Carter, 2005, 94–95). Concerns were expressed about the influence of powerful interests in the decision-making process, such as the US government, as well the tendency for serious issues of defence policy to be decided by the arcane and opaque rituals of 'raison d'état' and 'state bureaucracies' rather than democratic deliberation (Cohen and Arato, 1992, 586–587). Civil disobedience in all these examples can be defended as a means for disadvantaged citizens to exercise their communicative freedom in the face of severe obstacles or a means for concerned citizens to publicize and contest the disproportionate power of some agents to steer democratic deliberation in their favour. In so doing, civilly disobedient citizens highlight the influence of unequal social power on deliberative democratic processes. In this respect, they act as important guardians of 'communicative freedom' in a democratic society.

Conclusion: Civil Disobedience and Radical Democracy

In this article, I have offered some constructive suggestions for improving the defence of civil disobedience advanced by Habermas. While this exercise has not provided a simple formula that can, in the words of John Rawls, 'straightway decide actual cases', it has yielded a normative framework within which justifications for civil disobedience can be advanced and appraised (Rawls, 1999, 319). I want to conclude by offering a final reflection on the status of civil disobedience within the kind of radical democratic praxis envisaged by Habermas.

Through a careful reading of Habermas's writings, Lasse Thomassen identifies an apparent ambiguity in his understanding of civil disobedience. On the one hand, Habermas sometimes speaks as if the principles of deliberative democracy — which instantiate our communicative freedom — may, at some point in the future, be perfectly realized; after the dawning of this happy day, 'there would be neither need nor room for civil disobedience' (Thomassen, 2007, 206). On the other hand, Habermas sometimes speaks as if these principles do not admit of a perfect realization but merely frame a 'learning process' with no determinate end point; civil disobedience, on this interpretation, may continue to function as a means of defending and developing the underlying principles of a democratic regime (Thomassen, 2007, 205). This raises an important question about civil disobedience: should it be seen as a mere temporary measure, to be abandoned after the achievement of an ideal deliberative republic, or a more durable institution, which will continue to occupy an important place in the repertoire of democratic politics?

The Habermasian approach that has been elaborated in this article suggests that we should adopt the second of these two understandings.¹⁰ That is, we should anticipate that civil disobedience will play an important role in any modern society that is engaged in 'the project of realizing the system of rights' (Habermas, 1996, 445). At least one consideration that can be advanced to support this bold assertion is that, within such a society, one is likely to encounter 'organizations and subsystems whose social power and complex internal structure render them largely inaccessible to legal imperatives' (Habermas, 1996, 441). The presence of these 'subsystems' is not a mere contingency, but a reflection of the 'unavoidable complexity' of modern societies (Habermas, 1996, 327). This does not mean that deliberative democracy will necessarily become 'intrinsically compromised' by these sources of social power (Habermas, 1996, 386). It does mean, however, that illegitimate translations of social power into the law-making process, of the sort that have been explored throughout this article, are a more or less permanent possibility within complex modern societies. It is in this context that the oppositional activism of democratic citizens, in addition to innovations in the institutional fabric of deliberative democracy, assumes such an important role (Habermas, 1996, 381–382, 440–441). And it is for this reason that civil disobedience — as a means of contesting the corrosive influence of social power on the communicative infrastructures of deliberative democracy — will remain an indispensable component of a radical democratic praxis.

Notes

¹ Habermas's interest in protest and resistance spans his entire intellectual and political career: see, for instance, Habermas (1971, 13–49; 1987, 391–396; 2006, 23).

² Such a claim is powerfully advanced by Thomassen (2007), Grundmann and Mantziaris (1991), and Cohen and Arato (1992).

³ I follow Klaus Günther in suggesting that the concept of communicative freedom plays a more central role in the defence of co-originality than is perhaps suggested in Habermas's text (Günther, 1998).

⁴ Habermas characterizes the relationship between the state and public opinions expressed in civil society thus: 'public influence is transformed into communicative power only after it passes through the filters of the institutionalized procedures of democratic opinion and will formation and enters through parliamentary debates into legitimate law-making' (Habermas, 1996, 371). Civil society can only influence the state, which alone possess the right to 'transform' the opinions and beliefs of civil society into 'communicative power' in the form of legitimate law. Strictly speaking, Habermas sees law as a medium for transforming communicative power into 'administrative power', which is supposed to effectively implement law and policy. For a thorough discussion of inconsistencies in Habermas's location of communicative power in a deliberative democracy, see Flynn (2004).

⁵ He cites multiple readings of parliamentary bills and judicial review as examples.

⁶ This concern will not be ameliorated by limiting civil disobedience to what Habermas refers to as 'momentous decisions of an irreversible nature' (Habermas, 1985, 109). Firstly, to expect such decisions to approximate ideal discursive results is to set the standard of democratic legitimacy too high; insofar as a 'momentous' decision over a contested policy area has to be reached one way or another, majority rule — against a backdrop of guaranteed basic rights and a sufficiently undistorted process of deliberation — may be the only feasible and fair method available. Secondly, as Lasse Thomassen convincingly suggests, what constitutes a 'momentous' or 'irreversible' decision may itself be deeply contested (Thomassen, 2007, 209). Indeed, civil disobedience is often an attempt to challenge a society's understanding of what is or is not a 'momentous' or 'irreversible' decision.

⁷ A similar attempt to defend civil disobedience on deliberative democratic grounds is presented in Smith (2004).

⁸ The term 'altermondialist' is an attempt by some elements of the movement to resist the 'anti-globalization' label that is often ascribed to them. The intention is to contest the idea that they are opposed to globalization per se by stressing their commitment to models of economic and political globalization that differ from the prevailing neoliberal orthodoxy. For a range of perspectives on the protest network, see Mertes (2004).

⁹ ACT UP has carried out civil disobedience within various constitutional regimes, especially America, from around the late 1980s onwards. For an account of ACT UP's history, agenda, and campaigns of civil disobedience, see Sawyer (2002).

¹⁰ Thomassen also suggests that we should adopt the second of these readings, but argues that to do so we must move 'beyond the Habermasian framework' (Thomassen, 2007, 205). To this end, he explores the relevance of deconstructive thinking to debates about civil disobedience. As I argue in the text, I think that viewing civil disobedience as a permanent possibility within a necessarily imperfect deliberative democracy is possible — even required — within a Habermasian framework. This is not to dispute Thomassen's claim that Habermas's writings on deliberative democracy and civil disobedience admit of contrasting readings; even less is it to deny his highly pertinent suggestion that civilly disobedient citizens must exhibit 'maturity' and 'responsibility' in their actions (Thomassen, 2007, 212–216).

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